On Stevens’ Retirement

Everybody’s been talking about the latest interview from Justice Stevens about his retirement. It’s been one of the hot topics of discussion for the professor for the Bill of Rights course I’m taking. (Then again, she’s a lawyer and she’s the only one in the class who really participates in this kind of court gossiping. I guess it’s a lawyer thing. I know my friends and I talk about the latest squabbles between technology giants.)

In any case, I think the Court, like many other arenas of American society, has become way too polarized and political. The Court, having no financial or military power, can only rely on the strength of its argument to convince people of the rightness of their decisions. For that reason, it’s probably the best branch of the government and the one I most respect. They also have the luxury of not having to live with the decisions they make and the luxury of not having to listen to whatever the public says about their decisions. It’s a huge positive but also a huge negative. Since they’re not forced to be in touch with the public mood, they can ignore it and in some cases might not even realize it, and become this polarized body.

Once the Court becomes political, their arguments become tainted. It’s hard for a Democrat to read an opinion that seems to give the Republicans everything they want and feel that it’s okay, even if the arguments are all factually correct and logically consistent. One side trumpets a decision as the savior of the republic and the other side will denounce it as the final nail in the American coffin. When you see these 5-4 decisions split along party lines, it just becomes really easy to dismiss it as those nutty conservatives taking the Court over again.

I hope the Court realizes this and issues less 5-4 decisions that are split between what’s seen as the conservative side and the liberal side of the court. Larger majorities would go a long way to putting away the perception of the court as yet another arena for political squabbling. Creating larger majorities would make it hard for somebody to dismiss a decision as a political split, but instead force people to examine the arguments of the justices they perceive as on their side. This would probably conflict with being absolutely right or wrong according to the Constitution, but the perception of the Court is so intrinsic to their power that I feel they need to compromise a little on the absolutism in order to regain the public’s respect.

I also hope the news media covers the Court’s decisions less as a political horse-race in that one party gained and the other party lost (see Citizens United), but perhaps in a more measured and analytical fashion. (Don’t hold your breath.)

So whoever Obama chooses, I hope it’s somebody who can help persuade the majority to narrow their opinions to create larger majorities to help heal the deep rift between the right and the left of this country. (Though honestly, this is Chief Justice Roberts’ job. Based on his talk at the University of Alabama, he recognizes that the Court is becoming kind of political, but I don’t think he’s done anything to help it.)

What I don’t want is for Obama to choose somebody for the sake of creating a larger conservative majority. Marginalizing one side or the other only creates resentment and deepens the rift.

In the worst case, Obama would retain the current split so nothing too terrible will come about. But he has a chance to help heal a battered institution and I hope he takes it.

I was a big fan of Justice O’Connor. I’m slightly conservative so that part of her public persona appeals to me, but probably her best feature was her willingness to create law that was practical. She wrote into the Constitution many judicial tests. Arguably (and rightfully so), some of her opponents accuse her of legislating from the bench but I liked her practicality because it gave a bright line on what was illegal and what was OK. It’s a very hard line to tread, between legislating from the bench and creating opinions that matter, and I respect that.

I also like Justice Scalia. His passionate defense of originalism and precedent is quite compelling.